Supreme Court Vacancies in an Election Year

Another well-established convention convention (in the British sense of the word) is that Supreme Court Justices do not retire in a presidential election year. The last person to try this was Chief Justice Earl Warren in 1968. Although he was a Republican, he wanted Lyndon Johnson to appoint his successor (and definitely did not want Richard Nixon, his old rival from California, to make the choice). Johnson’s nomination of Abe Fortas went nowhere, in part because of issues specific to him and in part because the whole thing looked unseemly. While we think it is fine for a Justice to retire when the party they prefer is in power, that no longer extends to a presidential election year. This was not true before 1968. Here is a list of election year retirements since the Civil War:

1. Sherman Minton (1956)

2. Oliver Wendell Holmes (1932)

3. Charles Evans Hughes (1916) (resigned to run for President)

4. William Strong (1880)

5. Samuel Nelson (1872)

Now here’s a harder question. What if a Justice dies during a presidential election year? (No gamesmanship in that.) Would it be OK to select and confirm a successor swiftly? Would it matter if the death occurred after the election? Or whether the opposition party held the Senate? This issue has not arisen since 1916, when Justice Lamar died and was replaced by Brandeis (certainly not an uncontroversial nominee).

There are lots of nuances to this problem. If the party in power won the election, then action in a lame-duck Congress to confirm someone would probably be OK. If they lost, then I would say not. The further back from the election you go, the more legitimate action would be. Forcing the Court to operate with 8 Justices for a year would be harmful, which could happen if someone died in, say, February of the election year.